Opinion
A178532 A179120
12-20-2023
Joe CASTELLUCCIO, Plaintiff-Respondent, v. Jessica Lynn McGREW, Defendant-Appellant.
Carla Edmondson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. No appearance by respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Argued and submitted November 16, 2023.
Douglas County Circuit Court 21CN04016 William A. Marshall, Judge.
Carla Edmondson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.
No appearance by respondent.
Before Tookey, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.
LAGESEN, C. J.
In this consolidated appeal from two remedial contempt judgments, defendant assigns as plain error the trial court's imposition of a 90-day term of incarceration in the Douglas County Jail. The trial court imposed that sanction in the judgment at issue in A179120. Defendant correctly points out (1) that a fixed term of incarceration is a punitive sanction; and (2) that punitive sanctions are not permitted in remedial contempt proceedings. See ORS 33.045(2)(b); Miller and Miller, 204 Or.App. 82, 85, 129 P.3d 211 (2006) (holding that fixed term of confinement is punitive sanction, which is not authorized in remedial contempt proceeding); State v. Austin, 276 Or.App. 648, 651, 369 P.3d 100 (2016) (holding that punitive sanctions are not authorized in remedial contempt proceedings). Defendant further notes, again correctly, that it is plain error for a trial court to impose a punitive sanction in a remedial contempt proceeding. Austin, 276 Or.App. at 651 (holding trial court plainly erred in imposing punitive sanctions in a remedial contempt proceeding). Defendant asks us to exercise our discretion to correct that error, as we have in the past in similar cases. See id.
Defendant does not raise any assignments of error relating to the judgment of remedial contempt in A178532.
We agree with defendant. Under our case law, the trial court plainly erred by imposing a punitive contempt sanction of incarceration in a remedial contempt proceeding. The law has long been clear that putting a person in jail for a fixed term is not a legally permissible option in a remedial contempt proceeding. Miller, 204 Or.App. at 85. We exercise our discretion to correct the error. As we have recognized, a punitive sanction of confinement "carries a collateral consequence of a stigma that is analogous to a criminal conviction." State v. Hauskins, 251 Or.App. 34, 38-39, 281 P.3d 669 (2012). Defendant has a strong interest in having the error corrected to redress that stigma, and we have identified no interest in preserving the erroneous sanction. The error is grave because appellant was erroneously deprived of her liberty. The error is also grave because of the stigma associated with that erroneous term of incarceration, as we described in Hauskins. Under those circumstances, we are persuaded that the ends of justice are best served by correcting the error. Cf. State v. G. L., 238 Or.App. 546, 558, 243 P.3d 469 (2010) (exercising discretion to correct plain error in civil commitment proceeding because of stigmatizing consequences of involuntary deprivation of liberty). We therefore reverse and remand the judgment in A179120.
Although defendant has completed the jail term, under Hauskins, the stigma associated with that term of confinement means that this appeal is not moot. See Hauskins, 251 Or.App. at 38-39 (so noting); see also State v. Martinez-Garcia, 283 Or.App. 473, 477-78, 389 P.3d 405 (2017) (same).
Judgment in A179120 reversed and remanded; judgment in A178532 affirmed.